Let’s Go! Supreme Court Grants Cert To Hear Cases About Social Media Moderation Laws In Florida & Texas

This isn't exactly a surprise. Everyone has expected this pretty much from about the time that Ron DeSantis insisted he had a plan to regulate social media, but it got delayed by a year, because it seemed that the Supreme Court just didn't want to deal with it yet, and punted by asking the White House to weigh in. And weigh in they did, telling the Court to take the case, but not all of it. And that's now what the Supreme Court has done, agreeing to hear the NetChoice/CCIA challenges to Florida and Texas's laws regulating social media moderation.

This means that the Supreme Court is finally going to review whether or not states can force websites to host speech they disagree with. That's important, because the somewhat obvious answer to this question should be hell no." And that should be obvious to people across the political spectrum. Tragically, people across the political spectrum seem eager to use this power to force social media to moderate the way they want.

Unfortunately, the Supreme Court will not be reviewing everything about those laws. They agreed only to grant cert on the first two questions, about moderation restrictions and the requirement to explain every moderation decision, but not the transparency mandate part or the question about viewpoint discrimination. Here's the list of questions that they were asked to review, and you can see that they're skipping over the last two.

That's too bad, because, as we've discussed in the past, the transparency parts are actually really important. And leaving those in place will lead to real mischief. Of course, the Supreme Court can only avoid this issue for so long. The decision not to hear the transparency parts seems like another issue that the Supreme Court is just punting on (as it does), that it will have to deal with later.

Indeed, the failure to review that part is setting up a potentially really interesting fight. That's because there are social media transparency mandate laws in some very different states. Florida and Texas both have them, but there's also one in New York and one in California (again, highlighting how both sides of the political spectrum view this tool as a weapon to pressure companies to moderate the way they want them to).

So the Supreme Court is currently ignoring the question about transparency mandates, but with Eugene Volokh challenging the NY law and Elon Musk challenging the California law (both of which I think are good lawsuits), it's setting up a potentially really weird scenario in which you have all of these converging on the Supreme Court together. And while the 5th Circuit has made it clear it has no problem ruling that certain things are okay if Republicans do it," it may be a bit more difficult for the Supreme Court to do that in a case that directly highlights the contradiction. Is it possible for the Supreme Court to say that Mark Zuckerberg must be transparent, but Elon Musk doesn't have to?" I mean, sure, anything's possible, but it seems like a pretty big stretch.

Either way, this is going to be a really big and important Supreme Court case regarding the future of internet regulations.